REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     829           OF 2009 (Arising out of S.L.P. (Crl.) No.9410 of 2008)

Ram Babu Tiwari      ..Appellant

Versus

State of M.P. & Anr.  ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal  is to the order passed by a learned Single  

Judge  of  the  Madhya  Pradesh  High  Court,  Jabalpur  Bench,  directing  

cancellation of bail granted to the appellant.

3. Background facts are as follows:

The  present  appellant  along  with  two  others  was  arrested  in  

connection  with  Crime  no.149/2008  registered  at  Kotwali  Sehore,  for  

alleged  commission  of  offence  punishable  under  Sections  307  read  with  

Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’).  

Appellant  prayed for  bail  in  terms of  Section  439  of  the  Code  of  

Criminal Procedure, 1973 (in short ‘the Code’), which was allowed by order  

dated 27.5.2008 passed  by learned 1st Additional  Sessions  Judge,  Sihore.  

An application for cancellation for bail was filed by the present respondent  

no.2.

2

   Prosecution version is that in the wake of a property dispute present  

appellant  had  hired  with  the  assistance  of  one  Deepak  Harnath  Singh,  

respondent nos. 2 and 3 for killing Shyam Tiwari who is his real brother.  

The shot fired by the present appellant hit one Ravi @ Rinku in his neck.   

The cancellation was prayed on the following grounds:

(a) There is specific allegation against appellant that it was he who  

had fired the shot.   

(b) The  respondent  nos.  2  and  3  have  consistent  criminal  

antecedent.  

(c) After being released on bail, appellant by making a telephonic  

call  to  Nikhlesh  Tiwari,  nephew  of  Shyam  Tiwari,  had  

threatened to kill him in case he does not resile from his case  

diary statement.  

(d) Co-accused Deepak Harnath Singh is still absconding.

Accordingly, the High Court cancelled the bail granted.  It was noted  

that since the other co-accused have not opposed the prayer for cancellation  

of bail that was also a factor so far as the appellant is concerned.

3

4. Learned counsel for the appellant submitted that no reason has been  

indicated  to  cancel  the  bail.  The  parameters  for  grant  of  bail  and  for  

cancellation of bail operate in different fields.  Therefore, the High Court on  

the irrelevant reason that co-accused did not oppose the prayer should not  

have cancelled the bail granted to the appellant.

5. Learned counsel for the respondent no.2, on the other hand, supported  

the order.

6. The parameters for grant of bail and cancellation of bail are different.  

There is no dispute to this position.  But the question is if the trial Court  

while  granting  bail  acts  on  irrelevant  materials  or  takes  into  account  

irrelevant materials whether bail can be cancelled. Under the scheme of the  

Code the application for cancellation of bail can be filed before the Court  

granting the bail if it is a Court of Sessions, or the High Court.  

7. This  Court  in  Kalyan Chandra  Sarkar v.  Rajesh  Ranjan  @ Pappu  

Yadav and Anr. (2004 (7) SCC 528), in para 11 noted as follows:

4

“11. The law in regard to grant or refusal of bail is very  well settled. The court granting bail should exercise its  discretion in a judicious manner and not as a matter or  course.  Though at  the stage of granting bail  a detailed  examination of evidence and elaborate documentation of  the merit of the case need not be undertaken, there is a  need to indicate in such orders reasons for prima facie  concluding  why  bail  was  being  granted  particularly  where  the  accused  is  charged  of  having  committed  a  serious offence. Any order devoid of such reasons would  suffer from non-application of mind. It is also necessary  for  the  court  granting  bail  to  consider  among  other  circumstances, the following factors also before granting  bail; they are:

(a) The  nature  of  accusation  and  the  severity  of  punishment  in  case  of  conviction  and  the  nature  of  supporting evidence.

(a) Reasonable apprehension of tampering with the  witness or apprehension of threat to the complainant.

(a) Prima facie satisfaction of the court in support  of the charge. (See Ram Govind Upadhyay v. Sudarshan  Singh (2002 (3) SC 598) and Puran v. Rambilas (2001  (6) SCC 338).

8. It was also noted in the said case that the conditions laid down under  

Section 437 (1)(i) are sine qua non for granting bail even under Section 439  

of the Code.  

9. In para 14 it was noted as follows:

5

“14. We  have  already  noticed  from the  arguments  of  learned counsel for the appellant that the present accused  had  earlier  made  seven  applications  for  grant  of  bail  which were rejected by the High Court  and some such  rejections  have  been  affirmed by this  Court  also.  It  is  seen from the records that when the fifth application for  grant of bail was allowed by the High Court, the same  was challenged before this Court and this Court accepted  the said  challenge  by allowing the appeal  filed by the  Union  of  India  and  another  and  cancelled  the  bail  granted by the High Court as per the order of this Court  made in Criminal Appeal No. 745 of 2001 dated 25-7- 2001.  While  cancelling  the  said  bail  this  Court  specifically  held  that  the  fact  that  the  present  accused  was in custody for more than one year (at that time) and  the further fact that while rejecting an earlier application,  the  High  Court  had  given  liberty  to  renew  the  bail  application in future, were not grounds envisaged under  Section 437(1)(i) of the Code. This Court also in specific  terms held  that  the  condition  laid  down under  Section  437(1)(i)  is  sine  qua  non for  granting  bail  even under  Section  439  of  the  Code.  In  the  impugned  order  it  is  noticed  that  the  High  Court  has  given  the  period  of  incarceration already undergone by the accused and the  unlikelihood  of  trial  concluding  in  the  near  future  as  grounds sufficient to enlarge the accused on bail, in spite  of the fact that  the accused stands charged of offences  punishable with life imprisonment or even death penalty.  In  such  cases,  in  our  opinion,  the  mere  fact  that  the  accused  has  undergone  certain  period  of  incarceration  (three years in this case) by itself would not entitle the  accused to being enlarged on bail,  nor the fact that the  trial is not likely to be concluded in the near future either  by  itself  or  coupled  with  the  period  of  incarceration  would be sufficient  for  enlarging the  appellant  on bail  when  the  gravity  of  the  offence  alleged  is  severe  and  there are allegations of tampering with the witnesses by  the accused during the period  he was on bail.”

6

10. Even though the re-appreciation of the evidence as done by the Court  

granting bail  is  to  be avoided,  the  Court  dealing  with  an application for  

cancellation of bail  under Section 439(2) can consider  whether irrelevant  

materials were taken into consideration. That is so because it is not known  

as  to  what  extent  the  irrelevant  materials  weighed  with  the  Court  for  

accepting the prayer for bail.  

11. In  Puran v.  Rambilas and Anr. (2001 (6) SCC 338) it was noted as  

follows:

“11. Further, it is to be kept in mind that the concept of  setting aside the unjustified illegal or perverse order is  totally different from the concept of cancelling the bail  on the ground that the accused has misconducted himself  or  because  of  some  new  facts  requiring  such  cancellation. This position is made clear by this Court in  Gurcharan Singh v. State (Delhi Admn.). In that case the  Court observed as under: (SCC p. 124, para 16)

“If, however, a Court of Session had admitted an  accused person to bail, the State has two options.  It  may move  the  Sessions  Judge  if  certain  new  circumstances have arisen which were not earlier  known to the State  and necessarily, therefore,  to  that  court.  The  State  may as  well  approach  the  High Court being the superior court under Section  439(2) to commit the accused to custody. When,  however, the State is aggrieved by the order of the  

7

Sessions Judge granting bail and there are no new  circumstances that have cropped up except  those  already existing, it is futile for the State to move  the  Sessions  Judge  again  and  it  is  competent  in  law to move the High Court for cancellation of the  bail.  This  position  follows  from the  subordinate  position of the Court of Session vis-à-vis the High  Court.”

12. The perversity as highlighted in  Puran’s case (supra) can also flow  

from the fact that as noted above, irrelevant materials have been taken into  

consideration adding vulnerability to the order granting bail. The irrelevant  

materials should be of a substantial nature and not of a trivial nature. It is  

nature of the acts which are to be considered. By way of illustration, it can  

be said that the accused cannot take a plea while applying for bail that the  

person  whom he  killed  was a  hardened  criminal.  That  certainly  is  not  a  

factor which can be taken into account.  

13. The order of the High Court is very sketchy. The High Court has not  

considered the relevant aspect  in detail.  Only because the co-accused did  

not actually oppose the prayer for cancellation of bail, that could not have  

been a ground to cancel bail granted to the appellant.  

8

14. In the circumstances we set aside the impugned judgment and remit  

the matter to the High Court for fresh consideration.  We make it clear that  

we have not expressed any opinion on the merits of the case.  The High  

Court  shall  examine  the  matter  afresh  keeping  in  view  the  parameters  

indicated above.  The appeal is accordingly disposed of.

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J. (ASOK KUMAR GANGULY)

New Delhi, April 24, 2009

9